Equal Employment Opportunity Commission Releases National Origin Discrimination Guidance


NEW YORK—The federal Equal Employment Opportunity Commission (EEOC) has issued Enforcement Guidance on National Origin Discrimination, intended to communicate the EEOC's position on legal issues. The guidance discusses a variety of employment situations, including topics such as job segregation, human trafficking and intersectional discrimination, and outlines promising practices.

The EEOC also published a question-and-answer publication and a small business fact sheet that highlights practical tips from the guidance in plain language.

The guidance, issued late last year, is the EEOC’s first interpretation of the law surrounding national origin discrimination since it issued Section 13 of the 2002 edition of the EEOC compliance manual (volume II). The new guidance replaces that section, according to the agency’s website.

In fiscal year 2015, approximately 11 percent of the 89,385 private sector charges filed with the EEOC alleged national origin discrimination, and included allegations of unlawful failure to hire, termination, language-related issues and harassment. Title VII of the Civil Rights Act of 1964 protects individuals from discrimination based on his or her (or his or her ancestors') place of origin, including a country (e.g., Iran), a former country (e.g., Yugoslavia) or a place that is closely associated with an ethnic group (e.g., Kurdistan).

Workplace harassment may be based on national origin, such as when a worker is subjected to ethnic slurs, intimidation, workplace graffiti or physical violence based on his or her birthplace, ethnicity, culture, language, dress or accent.

Often, national origin is only one of an individual's characteristics that may be legally protected. Multiple protected bases may include national origin, race and religion for someone who is of Middle Eastern descent.

Title VII also prohibits intersectional discrimination, which occurs when someone is discriminated against because of a combination of two or more protected classes: for example, refusing to hire Asian women, but hiring Asian men and non-Asian women.

The guidance describes an instance in which a staffing firm and a client could be jointly liable for national origin discrimination. In addition, assigning individuals to non-customer contact jobs based on their national origin could result in a national origin discrimination charge.

Title VII protections may also intersect with other federal laws, such as the anti-discrimination provision of the Immigration and Nationality Act (INA), criminal laws addressing human trafficking, and federal laws and Executive Orders related to national security.

The guidance supersedes the EEOC's previous guidance on national origin discrimination, which was issued in 2002. The document will remain in effect until rescinded or superseded.

Under a Trump Administration, the enforcement focus and investigative intensity may be eventually adjusted with respect to national origin discrimination, depending on the administration's priorities.

Hedley Lawson, Contributing Editor
Managing Partner
Aligned Growth Partners, LLC
(707) 217-0979